U.S. v. Banks

• Citation: 10 F.3d 1044
• Decision Date: 07 May 1992
• Docket Number: Nos. 91-5025,91-5030 and 91-5071,s. 91-5025
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Kenneth BANKS, a/k/a Kenny, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. William Kenneth BANKS, a/k/a Kenny, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Garry COPELAND, a/k/a Fat Garry, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Fernando Cumbo BLOW, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bruce Elliott BOONE, Sr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Samuel COLLINS, Jr., a/k/a Cross, a/k/a Cadillac Sam, a/k/a Norristown Sam, Defendant-Appellant. to 91-5074.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1044

10 F.3d 1044

UNITED STATES of America, Plaintiff-Appellee, v. William Kenneth BANKS, a/k/a Kenny, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. William Kenneth BANKS, a/k/a Kenny, Defendant-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Garry COPELAND, a/k/a Fat Garry, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Fernando Cumbo BLOW, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Bruce Elliott BOONE, Sr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Samuel COLLINS, Jr., a/k/a Cross, a/k/a Cadillac Sam, a/k/a

Norristown Sam, Defendant-Appellant.

Nos. 91-5025, 91-5030 and 91-5071 to 91-5074.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1992 in Nos. 91-5030, 91-5071 to 91-5074.

Argued June 2, 1992 in No. 91-5025.

Decided Nov. 24, 1993.

Bobby Wayne Davis, Virginia Beach, VA, argued, for defendant-appellant Banks.

Edward Reif, Philadelphia, PA, argued, for defendant-appellant Collins.

Sa'ad El-Amin, El-Amin & Associates, P.C., Richmond, VA, argued, for defendant-appellant Boone.

Paul Henderson Ray, Virginia Beach, VA, argued, for defendant-appellant Copeland.

Kenneth Bruce Wills, Norfolk, VA, argued, for defendant-appellant Blow.

Charles Dee Griffith, Jr., Asst. U.S. Atty., Norfolk, VA, argued (Richard Cullen, U.S. Atty., Norfolk, VA, on brief), for plaintiff-appellee.

Before WIDENER and PHILLIPS, Circuit Judges, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

PHILLIPS, Circuit Judge:

These are the consolidated appeals of five defendants, William Kenneth Banks, Fernando Cumbo Blow, Bruce Elliott Boone, Samuel Collins, and Garry Copeland, who were tried, convicted, and sentenced for conspiracy to distribute heroin, cocaine, and crack cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and for various related substantive offenses, and a cross-appeal by the Government that challenges the Guideline sentence imposed on Banks. We affirm as to all.

I

This is what has come to be a classic drug conspiracy case in which a large number of persons, here fourteen, are originally charged with engaging over time in a large-scale single conspiracy to possess for distribution and to distribute drugs, along with specific acts of possession, distribution and related offenses within an urban market area, and in which a number of those charged, here six, plead guilty under plea agreements and testify as Government witnesses against their confederates while others, here three, flee to escape trial, leaving the rest, here five, to be tried, convicted, and sentenced. Here, the urban market area was in Tidewater Virginia, in and around Portsmouth, Chesapeake, Virginia Beach, and Norfolk, with connections to market supplies and suppliers in Philadelphia and New York, and the conspiracy one that operated successfully for almost seven years from 1984 until 1990.

More specifically, the evidence, as principally developed by the testimony of co-conspirators and the wire-tapped conversations of various participants in the conspiracy, and as considered in the light most favorable to the Government, tended to show the following. The conspiracy's origins probably began near the end of 1984, when Gary Weathers, ultimately Government informant and principal trial witness, was introduced to defendant Samuel Collins in Philadelphia, where Collins was then living, by defendant Garry Copeland, an acquaintance of Collins from their earlier days as neighbors in Chesapeake, Virginia, for the purpose of establishing a source of drug supply for Weathers. As a result, Weathers began purchasing drugs, first heroin, later cocaine, from Collins, which Weathers then either retailed through agents or re-sold to other distributors, including defendant Fernando Blow and his brother, Antonio Blow, in the Tidewater Virginia area. During the early years of the Collins-Weathers arrangement, Copeland operated as broker-courier between Collins in Philadelphia and various distributors, including Weathers, in the Tidewater area, taking money collected from the Tidewater distributors to Collins and then transporting drugs supplied by Collins back to Virginia. During this period, Collins frequently came down from Pennsylvania to Portsmouth, where he'd sometimes stay in his local girlfriend's apartment. On occasion Weathers, with Copeland present, would receive supplies of heroin from Collins in the Portsmouth apartment where Collins was staying, and on some of these occasions, Copeland would deliver to Collins money that Copeland had collected from other distributors in the area. During this same period, when Weathers was getting heroin from Collins about twice a month for distribution in the Tidewater area, Collins was also supplying heroin to defendant Boone, another acquaintance from earlier Chesapeake days, for distribution in the same general area. Boone and Weathers in fact sometimes met during this period in the Portsmouth apartment with Collins and Copeland, with Collins delivering heroin to both for their distribution operations, and receiving from Copeland money he had collected from various distributors in the area.

Beginning in 1986, Weathers began buying heroin in bulk from defendant Banks, some of which Banks in turn had bought from Boone. This heroin was also distributed by Weathers to sub-distributors in the area, including the defendant Fernando Blow, who carried on an extensive cocaine and heroin distribution operation from his heavily guarded residence in Portsmouth, where he maintained a substantial arsenal of firearms. As Weathers knew, Blow was also getting some of his heroin supply at that time from Banks, who was also then Weathers' supplier.

Sometime in late 1988, Weathers and Boone arranged for Weathers to begin buying heroin in bulk from Boone, an arrangement that lasted for about six months during which Weathers continued his distribution operation with the heroin supplied now by Boone. During this time, Boone was still getting his heroin in bulk from Collins who was also continuing to supply Banks.

Beginning in 1986, various low-level operatives directly associated with the particular endeavors of Blow, Weathers, Collins, Boone, or Banks were apprehended in the course of their operations. First, in October, 1986, DEA agents arrested a courier, Adillu, who came into Norfolk Airport from New York, in possession of around five and a half ounces of heroin which it later was revealed was to have been delivered to defendant Boone. Next, Rufus Hurdle, one of the indicted co-defendants who pled guilty, was arrested in November of 1986 while in possession of 900 grams of heroin that he had brought by plane from Newark to Norfolk for delivery to Banks, some of which in turn Banks was to deliver to Weathers. Finally, in August of 1988, Antonio Blow, brother of defendant Fernando Blow, was arrested in Chesapeake in possession of around seven and a half ounces of heroin that Weathers had received from Banks and in turn delivered to Antonio Blow for distribution in the area.

As a result of these arrests and the ensuing cooperation of those arrested, law enforcement officers began to concentrate on the five appellants and Weathers, all of whom had been identified by the persons arrested as principals in the drug distribution operations in which they were involved. Based upon the information given by these persons, together with pen register information obtained from telephones used by various ones of the principal suspects, the Government secured an order for wiretapping of cellular telephones used by Weathers, now identified as a principal middleman in the operation, and his chief lieutenants, Ricky Faulcon and James Small. Monitoring began in May of 1989 and continued until July, 1989, when Weathers was arrested. Thousands of telephone conversations were monitored in the process, many between Weathers and his suppliers and distributors of that time, including the defendants Collins, Boone, and Copeland. Many of the conversations, as later explained to the jury by Weathers testifying as Government witness, directly implicated those charged in the conspiracy.

As a result of several of the monitored conversations, it was learned in July of 1989 that Weathers, Small and Faulcon then had in their possession approximately a kilogram of cocaine. They were therefore arrested, and in short order Weathers entered into a plea agreement which obligated him to cooperate in further investigation of the suspected conspiracy. As part of this cooperation, Weathers made monitored telephone calls to Banks and Copeland in which he represented that he was in the penitentiary and wanted the help of each in carrying on his part of the drug distribution enterprise. Each, not knowing of the call to the other, agreed and actually undertook to do what Weathers requested. Banks, following Weathers' instructions, took delivery of approximately seven and a half ounces of "sham" heroin from an undercover agent acting as Weathers' courier. Copeland, acting similarly, took delivery of a quantity of "sham" cocaine, ostensibly given him for distribution on Weathers' account. Both were arrested in consequence of these sting operations set up with Weathers' cooperation.

Following the later arrest and indictment of the other defendants, Boone, Collins, Banks and Copeland were confined pending trial in the same cell block with two co-defendants, Linwood Taylor and Charles Hendricks, who both later pled guilty and testified as Government witnesses. While so confined, Boone and Banks both requested Hendricks to lie about some of the wiretapped telephone conversations that might implicate them. Boone threatened Taylor with harm if he testified against him, urged all those present to stick together, and described, with Collins' confirmation, techniques used by Collins to...